Most married couples in Asheville spend far more time talking about what they own than what they owe. But in a divorce, debts carry just as much weight as assets. Credit card balances, mortgages, car loans, student debt, and business liabilities don’t disappear—they follow the person who signed the paperwork, unless the court says otherwise.
That’s why an effective postnuptial agreement needs to deal with debt just as carefully as it handles assets.
For couples who didn’t sign a prenup or who now want to revise the financial terms of their marriage, a postnup can define how debts will be managed, paid, and divided if the relationship ends. Without this clarity, the default rules of equitable distribution in North Carolina apply—and those rules don’t always feel fair.
An experienced Asheville prenup lawyer helps couples draft postnuptial agreements that proactively address marital debts, assign responsibility, and reduce conflict down the road. This article breaks down the different types of marital debt, explains how to approach each one in a postnup, and outlines the principles that make these agreements enforceable.
What Is a Marital Debt?
In North Carolina, marital debts are any obligations incurred by either spouse during the marriage for the joint benefit of the household. These can include:
- Mortgages
- Credit card balances
- Car loans
- Medical bills
- Tax liabilities
- Student loans
- Business loans
- Home equity lines of credit
Even if the debt is in only one spouse’s name, it may still be considered marital if the funds were used for the benefit of the marriage or family.
Without a postnup, these debts are divided equitably by the court during divorce—not necessarily equally, and not always in line with the couple’s expectations.
An Asheville prenup lawyer structures postnups that clearly allocate these debts in advance.
Why Address Debts in a Postnup?
A postnuptial agreement is a powerful tool because it lets couples create their own rules. Rather than relying on a judge to sort out debt responsibility later, you can:
- Confirm who will repay specific obligations
- Clarify whether premarital debts remain separate
- Define how joint debts will be managed
- Prevent one spouse’s reckless borrowing from harming the other
- Protect a spouse’s credit if the other defaults
- Create mechanisms for reimbursement if marital funds are used to pay separate debt
In short, a postnup is your opportunity to put debt boundaries in writing—before conflict arises.
An Asheville prenup lawyer tailors these terms to each couple’s real financial picture.
Common Debt Scenarios Addressed in Asheville Postnups
1. One Spouse Has Significant Premarital Debt
It’s common for one spouse to bring credit card balances, personal loans, or student loans into the marriage. A postnup can confirm that these debts remain the separate responsibility of that spouse.
Language might include:
- “Any debt incurred prior to the date of marriage shall remain the separate obligation of the spouse who incurred it, and the other spouse shall have no responsibility or liability for the same.”
This provision prevents the debt from becoming subject to division during divorce—even if marital funds were later used to pay it.
An Asheville prenup lawyer also includes clauses that address commingling and reimbursement.
2. The Couple Incurs Joint Debt During the Marriage
Joint credit cards, car loans, or home equity lines often lack clear understanding about who pays what. A postnup can:
- Assign payment responsibility based on income or usage
- Define what happens if one spouse makes payments from separate funds
- Include indemnification clauses in case of default
Language might say:
- “In the event of separation, Spouse A shall assume sole responsibility for the Wells Fargo Home Equity Line of Credit and shall indemnify Spouse B against any claims or liabilities arising therefrom.”
This helps avoid finger-pointing when emotions are high.
An Asheville prenup lawyer customizes joint debt provisions based on account structures and repayment histories.
3. One Spouse Accumulates Debt Without the Other’s Knowledge
If one spouse is spending recklessly, hiding purchases, or opening credit accounts in secret, the other spouse may want legal protection moving forward.
A postnup can include:
- Limits on credit use or borrowing
- Agreement that certain debts are the responsibility of the incurring spouse
- Reimbursement provisions if marital funds are used to cover hidden debts
For example:
- “Any debt incurred by either party without the written consent of the other party, in excess of $2,500, shall be the sole obligation of the incurring party and shall not be considered a marital debt for purposes of equitable distribution.”
An Asheville prenup lawyer includes debt integrity clauses that promote transparency and trust.
4. Medical Debt or Emergency Spending
Unexpected medical bills can trigger serious financial strain—and marital tension. A postnup can clarify how these debts are handled.
The agreement might provide:
- Which spouse’s insurance is primary
- Who pays deductibles and out-of-pocket expenses
- Whether large medical bills will be shared equally, or by income
- What happens if one spouse declines treatment to avoid debt
Clarity reduces the emotional toll of medical crises.
An Asheville prenup lawyer accounts for both practical health needs and financial realities.
5. Business Debts
If one spouse owns a business, that business may take on loans or credit obligations. A postnup can protect the other spouse from being pulled into the liability.
Provisions might include:
- “Any debt incurred by Spouse A in connection with the operation of A’s business shall remain the sole responsibility of Spouse A, and Spouse B shall not be liable for the same, regardless of whether such debt was incurred during the marriage.”
It’s also common to address whether marital funds can be used to support the business and whether any contribution creates an ownership interest.
An Asheville prenup lawyer includes language that preserves separation while allowing for flexibility when needed.
6. Taxes and IRS Liabilities
Married couples often file joint tax returns. If one spouse underreports or triggers an audit, both may be held liable. A postnup can allocate responsibility.
Clauses may include:
- “In the event of a tax deficiency or audit, each spouse shall be responsible for any additional tax, penalty, or interest attributable to their respective income or conduct.”
This prevents one spouse from bearing the burden of the other’s tax errors.
An Asheville prenup lawyer often collaborates with tax professionals to draft these clauses accurately.
Key Legal Concepts in Debt Provisions
1. Separate vs. Marital Debt
The agreement should define:
- What qualifies as separate debt
- What qualifies as marital debt
- How debt classification may change over time
2. Reimbursement Clauses
If one spouse uses separate funds to pay off a marital debt—or vice versa—the agreement can specify whether reimbursement is required.
For example:
- “If Spouse A uses separate funds to satisfy a marital credit card debt, Spouse A shall be reimbursed from marital assets prior to distribution.”
3. Indemnification
This clause protects a spouse from liability for the other’s obligations.
For example:
- “Spouse A agrees to indemnify and hold harmless Spouse B from any liability related to the Discover Card ending in 4589.”
4. Debt Assignment at Divorce
A postnup can pre-assign debts in the event of divorce, reducing court involvement.
For example:
- “Upon dissolution of the marriage, Spouse A shall assume the remaining balance of the auto loan on the 2022 Ford Explorer and release Spouse B from any obligation thereon.”
What Makes a Debt Clause Enforceable in a North Carolina Postnup?
To be enforceable, debt-related provisions must meet the general standards for postnups in North Carolina:
- The agreement must be in writing
- Both parties must sign voluntarily
- There must be full financial disclosure
- The terms must not be unconscionable
- Each spouse must receive adequate consideration
- The agreement must not violate public policy
Including precise debt provisions, supported by financial schedules and legal counsel, increases enforceability.
An Asheville prenup lawyer builds these elements into every agreement.
What Happens If a Debt Provision Is Ignored or Challenged?
If one spouse tries to avoid their agreed debt obligations, the other may have to seek enforcement through court. A judge will examine:
- Whether the postnup was executed properly
- Whether the debt provision was specific and fair
- Whether the agreement remains equitable under current circumstances
If the court finds the debt clause clear and valid, it will typically enforce it.
If the clause is vague, unfair, or based on flawed disclosure, the court may refuse to enforce it and revert to standard equitable distribution.
An Asheville prenup lawyer drafts every clause with a litigation lens to reduce risk.
Practical Tips for Drafting Debt Provisions in a Postnup
- Be specific. Identify accounts, lenders, balances, and loan numbers.
- Use clear classifications. Define what is separate, what is joint, and what changes status under certain conditions.
- Consider future events. Think about what happens if one spouse loses a job or files for bankruptcy.
- Include contingencies. Address what happens if an asset securing a debt is sold or transferred.
- Include modification provisions. Allow the couple to revisit the agreement as finances evolve.
An Asheville prenup lawyer works with both spouses to create a durable agreement that grows with the marriage.
Frequently Asked Questions
Can we use a postnup to assign who pays which debts?
Yes. A properly drafted postnup in North Carolina can assign responsibility for specific debts and protect each spouse from liability for the other’s obligations.
Is a debt I incurred before marriage considered marital?
Generally no, but if marital funds are used to pay it off—or the debt is refinanced during the marriage—it may become part of the marital estate. A postnup can prevent that shift.
Can we waive responsibility for each other’s credit cards?
Yes. Your postnup can state that credit card debt in one spouse’s name remains their responsibility, regardless of when it was incurred.
Do we both need lawyers to make the postnup enforceable?
Not legally required, but highly recommended. Courts look more favorably on postnups when both parties had independent legal advice.
Can we include rules about future debt?
Yes. You can include terms limiting borrowing, requiring disclosures, or assigning new debt as separate unless agreed otherwise.
What if one of us defaults on a loan assigned in the postnup?
If the debt was clearly assigned in the agreement, the other spouse can sue for indemnification or enforcement.
Can we decide in the postnup who gets the mortgage?
Yes. You can assign mortgage responsibility and title in the postnup, though you may still need to refinance or coordinate with the lender after divorce.
Does a postnup cover tax debts?
It can. A postnup can allocate responsibility for joint tax filings, audit results, and penalties, especially if one spouse is self-employed or owns a business.
What if our financial situation changes?
Include a clause that allows you to amend the agreement by mutual consent. That way, the terms can evolve with your needs.
Is a postnup the only way to protect against marital debt?
It’s one of the strongest tools. Without a postnup, you rely on the court’s discretion under North Carolina’s equitable distribution laws, which may not align with your intentions.
The McKinney Law Group: Serving Asheville Couples with Fair, Personalized Prenups
Every couple’s situation is different. We draft Asheville prenuptial agreements that are legally sound, thoughtfully negotiated, and tailored to your unique financial and personal priorities.
Call 828-929-0642 or email [email protected] to begin the conversation.